Appeals Court Rules Job Applicants Can’t Sue for Systemic Age Discrimination

A federal appeals court has ruled that job applicants cannot sue an employer under the Age Discrimination in Employment Act for promulgating policies and practices that discriminate in hiring on the basis of age.

The ruling is a major setback for victims of age discrimination in hiring, which for years has been widespread, overt and unaddressed.

The full 11th Circuit of Appeals in Atlanta, in a ruling dated Oct. 5, ruled the Age Discrimination in Employment Act of 1967 “makes it clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no “status as an employee.’” The ruling overturns an earlier 2-1 ruling by a three-judge panel holding that the ADEA permits older job applicants to sue for age discrimination in hiring. The 11th circuit has jurisdiction over cases in Alabama, Florida and Georgia.

The ruling graphically illustrates the lack of protection afforded to older workers compared to victims of other types of employment discrimination. Job applicants are permitted to file so-called disparate impact lawsuits under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin.

The ruling came in the case of Richard M. Villarreal who, beginning at age 49, applied seven times over the Internet for a position as a territory manager at R.J. Reynolds Tobacco Co.   He was never hired and he was never told why his applications were rejected.

The 11th Circuit’s ruling deprives older job applicants of a way to counter modern-day age discrimination in hiring, including the use of covert Internet screening tools.

After being contacted by a whistle blower, a  law firm told Villarreal that Reynolds had contracted with two recruiting firms to develop internet screening tools to target young job applicants for hire and screen out applicant having eight to ten years of experience.

Villarreal filed suit in 2010 against Reynolds and a staffing firm, Pinstripe, Inc., alleging disparate treatment and disparate impact discrimination.

The disparate treatment theory requires the plaintiff to prove the employer engaged in intentional age discrimination whereas the disparate impact theory argues the employer adopted a seemingly neutral policy or practice that had a disproportionate and adverse impact upon older job applicants. The plaintiff is not required to show intentional discrimination under the disparate impact theory.

Villarreal’s case now hangs by a thin thread.

The appeal’s court affirmed the lower court’s dismissal of Villarreal’s disparate treatment claim because it was filed after the statute of limitations expired. The Court agreed that Villarreal failed to exercise “diligence’ because he did not ask Reynolds why he was not hired in 2007. The appeals court remanded the case back to the lower court so Villarreal could pursue a  “continuing-violation” theory that would render his 2007 claim timely.

The appeals court said the ADEA does not permit job applicants to use the so-called disparate impact theory, which challenges company-wide employment policies and practices that adversely affect older job applicants. The court refused to defer to the Equal Employment Opportunity Commission’s argument that the ADEA does permit disparate impact lawsuits “because we do not defer to an agency’s interpretation of a statute when the text is clear.”

The ruling eliminates any means of redress for thousands of older job applicants who applied for positions at Reynolds only to have their applications diverted into a digital trash can sight unseen.

The case is Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602,(11th Cir.).

U.S. Chamber’s Abhorrent Justification of Age Discrimination in Hiring

In the tradition of Scrooge, the patriarchy and the Confederacy of the old South, the U.S. Chamber of Commerce has publicly endorsed age discrimination in hiring as both sound policy and reasonable.

The Chamber asserts its cynical position in an amicus brief filed in the case of  Richard Villarreal, 49, who filed a half-dozen applications to work as a Territory Manager for R.J. Reynolds Tobacco, Co. from 2007 to 2010, when he discovered that Reynolds, working with national staffing agencies, used “resume review guidelines” to weed out the Internet applications of older workers. Reynolds’ guidelines specified that “desired” candidates had “2-3 years out of college” and told recruiters to “stay away from” candidates with eight to 10 years of experience. Villarreal’s resume and the resumes of hundreds of other older job applicants were dumped into a digital trash can.

Fortunately, a three-judge panel of the U.S. Court of Appeal for the 11th Circuit in Atlanta split from several other federal circuits and  rejected the Chamber’s argument.  In a 2-to-1 vote, a panel of three 11th Circuit judges voted that job applicants are permitted under the Age Discrimination in Employment Act of 1967 (ADEA) to file disparate impact lawsuits challenging employer policies and practices that discriminate on the basis of age. (Note: the full appeals court overturned the panel’s decision in October 2017 and ruled that job applicants cannot sue an employer under the Age Discrimination in Employment Act for promulgating policies and practices that discriminate in hiring on the basis of age.)

In its ‘friend of the court’ brief, the Chamber concedes that older workers have far less protection against invidious discrimination under the ADEA than is available to workers on the basis of race, sex, religion, color and national origin under Title VII of the Civil Rights Act of 1964.  The Chamber said the U.S. Congress, in 1967, had “sound policy reasons” to deny older workers equal protection because “[o]lder workers did not face societal headwinds that might lock them into a lifetime of inferior job prospects ….”

Few would argue that slavery was moral or justified because it was legal – This is essentially the Chamber’s argument with respect to age discrimination.

The Chamber’s arguments are terribly flawed. For example, American law permitted the  enslavement of African Americans until the passage of the 13th Amendment to the U.S. Constitution in 1865 and women were denied  the right to vote until 1920.  This in no way justifies slavery or the disenfranchisement of women. Neither does the fact that Congress 50 years ago buckled to business interests and passed an age discrimination law  that was weak and riddled with loopholes.

The Chamber’s reasoning is illogical.  Would the Chamber argue that blind or deaf workers are ineligible for the protection of the Americans with Disabilities Act if they were born with normal sight or hearing but later suffered impairment?  They did not experience a lifetime of inferior job prospects. Nor does Title VII omit immigrants with advanced educations who became subject to discrimination after they arrived in the U.S.    Continue reading “U.S. Chamber’s Abhorrent Justification of Age Discrimination in Hiring”

Appeals Court Tackles Systemic Age Discrimination in Hiring

For years, it has been widely suspected that older applicants are being screened out of competition for jobs by employers using discriminatory computer software  programs.

This is why a landmark ruling this week  by a three-judge panel of the  U.S. Court of Appeals for the Eleventh Circuit in Atlanta is an important step in the battle against epidemic and systemic age discrimination in hiring.

In a 2-to-1 decision, the panel ruled:

  • The Age Discrimination in Employment Act does not bar job applicants from filing a disparate impact claim, a type of charge that challenges a facially neutral policy that has a disproportionate impact on older workers. This paves the way for older job applicants to file collective actions alleging age discrimination in hiring, a form of class action lawsuits permissible under the ADEA.
  • A job applicant should not be barred from filing an age discrimination lawsuit by the ADEA’s 180-day statute of limitations if the  applicant had no way of knowing that s/he was the victim of age discrimination.  The appeals court said the “clock” starts ticking when the plaintiff has enough information to support a cause of action.

The case was filed by job applicant Richard Villarreal, who submitted multiple online applications to work as a sales manager for RJ Reynolds Tobacco starting in 2007 when Villarreal was 49 years of age. Villarreal did not learn until 2010 that Reynolds had adopted “resume review guidelines” that weeded out older applicants. At that point, he filed a discrimination lawsuit alleging both disparate treatment (intentional discrimination) and disparate impact discrimination. Obstacles embedded in theADEA led to the dismissal of Villarreal’s lawsuit by the lower court.

Specifically, the guidelines tell hiring managers to target candidates who are “2–3 years out of college” but to “stay away from” candidates with “8–10 years” of prior sales experience. 

The appeals court reversed the  lower court’s findings that the ADEA does not permit disparate impact claims and that Villarreal’s lawsuit was not timely under the ADEA’s  180-day statute of llmitations.

With respect to disparate impact claims, the appeals court  deferred to the U.S. Equal Employment Opportunity Commission’s interpretation of the ADEA, which is that job applicants can file disparate impact lawsuits. The appeals court panel writes, “We must defer to the EEOC’s] reading rather than venture our own guess about what the statute means.” The dispute over whether the ADEA authorizes disparate impact lawsuits by job applicants stems from the fact that  Congress amended Title VII of the Civil Rights Act in 1972 to protect “applicants for employment” but never similarly amended the ADEA.

The panel stated that Villarreal simply had too few facts to support an age discrimination claim until 2010 when a statistical analysis showed that  Reynolds had hired  1,024 people as Territory Managers from September 2007 to July 2010 but only 19 were over the age of 40.  The panel applied an equity or fairness-based principle to toll the statute of limitations until Villarreal had sufficient information to support a cause of action.The panel notes that neither the job application nor any other information available to Villarreal “described Rj Reynolds hiring process, the resume review guidelines, or the statistical disparities in the ages of successful applicants.”

Other defendants in the case are, the internet search giant, and Pinstripe, Inc., a technology consulting firm based in Charlotte, NC.

The case is Villarreal v. R.J. Reynolds Tobacco Company, Pinstripe, Inc.  Careerbuilder, LLC.  The ruling technically is only applicable to the 11th Circuit, which  has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia. According to the dissent, three other federal circuits have held that job applicants cannot file a disparate impact claim. A conflict between the circuits can only be resolved by the U.S. Supreme Court.